November 16, 1990

Mr. John P. Slattery
Union County State's Attorney
P.O. Box 398
Elk Point, SD 57025-0398

OFFICIAL OPINION NO. 90-41

Out-of-state notary seals

Dear State's Attorney Slattery:

You have asked for an Official Opinion from this Office regarding the following factual situation:

FACTS:

Recently I was approached by a bank officer from the State of Iowa who was attempting to have a document filed with the Union County Register of Deeds. The document required notarization and as it was executed in the State of Iowa, an Iowa notary public notarized this document. Iowa has recently changed its notary public requirements so that it no longer requires a seal be placed on a notarized document. Apparently it is sufficient if the signature, name and the date of commission expiration appear as part of the notarization. South Dakota still requires the use of a stamp or a seal as part of its notarization.

Based upon these facts, you have asked the following question:

QUESTION:

My question is whether my local Register of Deeds should accept the document for filing if it does not meet the State of South Dakota notarization requirements. Alternatively, my question is whether this State should give full faith and credit to the notarization requirements of the State of Iowa if they are not the same as ours.

IN RE QUESTION:

A minor conflict does exist between Iowa notary public statutory requirements and those of South Dakota, in that South Dakota requires a seal, whereas Iowa law does not. As you have stated, the question then becomes whether South Dakota should give credence to documents filed here but notarized in Iowa.

The first sentence of the United States Constitution's "Full Faith and Credit Clause" provides guidance relevant to this situation. The full clause reads as follows:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

U.S. Const. art. IV, 1. Obviously, application of the clause is important here.

First, the Iowa statutes establishing that state's notary public requirements clearly come under the Full Faith and Credit Clause. "A statute is a `public act' within the meaning of the Full Faith and Credit Clause. [Citations omitted.]" Carroll v. Lanza, 349 U.S. 408, 411, 75 S.Ct. 804, 806, 99 L.Ed. 1183, 1188 (1955).

The overall intent and meaning of the constitutional provision has been outlined by the United States Supreme Court.

The full faith and credit clause is one of the provisions incorporated into the Constitution by its framers for the purpose of transforming an aggregation of independent, sovereign States into a nation. If in its application local policy must at times be required to give way, such 'is part of the price of our federal system.` [Citation omitted.]

Sherrer v. Sherrer, 334 U.S. 343, 355, 68 S.Ct. 1087, 1092-93, 92 L.Ed. 1429, 1438 (1948). Each state must give a little sovereign authority in order to gain the benefits of federal unity.

In spite of the language of Sherrer, supra, various courts have made it equally clear that "full faith and credit" is not an unyielding doctrine. When statutes of respective states collide, a balancing test must be applied.

Where the policy of one state's statute comes into conflict with that of another, the necessity of some accommodation of the conflicting interests is apparent, and the conflict is to be resolved, not by giving automatic effect to the full faith and credit clause, compelling the courts of each state to subordinate its own statutes to those of the other, but by appraising the governmental interests of each jurisdiction, and turning the scale of decision according to their weight.

Sheerin v. Steele, 240 F.2d 797, 800 (6th Cir. 1957). Whether South Dakota should give full faith and credit to Iowa notary law requires examination and balancing.

It appears to me that South Dakota and its citizens have very little to lose by recognizing an Iowa notarization, even though not under seal. On the other hand, for us to require Iowa notaries to obtain and utilize seals on documents which will end up here, when their statutes do not require such, is completely beyond South Dakota's power and jurisdiction. Equally impractical would be a State imposed requirement that a South Dakota notary travel to Iowa to notarize documents to be filed in this State or to require parties to an agreement signed in Iowa but to be filed in South Dakota to come to this State for such signing and notarization. Consequently, when all the factors representing the two states' interests are balanced, the Iowa notary public requirements should be given full faith and credit in South Dakota.

Your question and alternative are two sides of the same legal coin and, as such, can be answered simultaneously. The answer is that South Dakota should give full faith and credit to the notarization laws of the State of Iowa and, consequently, your Register of Deeds should accept out-of-state documents for filing if they have been properly notarized under the laws of their respective home state.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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